Expeditious Action on Telecommunications Merger Act - Requires Federal Communications Commission (FCC) consideration of any application for a transfer of license, or for the acquisition and operation of lines, that is associated with an acquisition of voting securities or assets to be governed by the schedule set forth in this Act. Directs the FCC to complete consideration of: (1) an application that would result in the acquiring person holding 15 percent or more of the voting securities or assets of the acquired person, or an aggregate total amount of the voting securities and assets of the acquired person in excess of $15 million, not later than 180 days after receipt of the application unless, by majority vote, it extends the period by not more than 60 days; and (2) any other such application not later than 90 days after receipt unless it extends the period by not more than 30 days. Specifies that if the FCC does not approve, approve with modifications, or deny an application by that date, the application shall be deemed approved without modifications.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 467 Introduced in Senate (IS)]
106th CONGRESS
1st Session
S. 467
To restate and improve section 7A of the Clayton Act, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 25, 1999
Mr. DeWine (for himself and Mr. Kohl) introduced the following bill;
which was read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To restate and improve section 7A of the Clayton Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Antitrust Merger Review Act''.
SEC. 2. RESTATEMENT AND IMPROVEMENT OF SECTION 7A OF THE CLAYTON ACT.
(a) In General.--Section 7A of the Clayton Act (15 U.S.C. 18a) is
amended to read as follows:
``Sec. 7A. (a) Except as exempted pursuant to subsection (c), no
person shall acquire, directly or indirectly, any voting securities or
assets of any other person, unless both persons (or in the case of a
tender offer, the acquiring person) file notification pursuant to rules
under subsection (d)(1) and the waiting period described in subsection
(b)(1) has expired, if--
``(1) the acquiring person, or the person whose voting
securities or assets are being acquired, is engaged in commerce
or in any activity affecting commerce;
``(2)(A) any voting securities or assets of a person
engaged in manufacturing which has annual net sales or total
assets of $10,000,000 or more are being acquired by any person
which has total assets or annual net sales of $100,000,000 or
more;
``(B) any voting securities or assets of a person not
engaged in manufacturing which has total assets of $10,000,000
or more are being acquired by any person which has total assets
or annual net sales of $100,000,000 or more; or
``(C) any voting securities or assets of a person with
annual net sales or total assets of $100,000,000 or more are
being acquired by any person with total assets or annual net
sales of $10,000,000 or more; and
``(3) as a result of such acquisition, the acquiring person
would hold--
``(A) 15 per centum or more of the voting
securities or assets of the acquired person, or
``(B) an aggregate total amount of the voting
securities and assets of the acquired person in excess
of $15,000,000.
In the case of a tender offer, the person whose voting securities are
sought to be acquired by a person required to file notification under
this subsection shall file notification pursuant to rules under
subsection (d).
``(b)(1) The waiting period required under subsection (a) shall--
``(A) begin on the date of the receipt by the Federal Trade
Commission and the Assistant Attorney General in charge of the
Antitrust Division of the Department of Justice (hereinafter
referred to in this section as the `Assistant Attorney
General') of--
``(i) the completed notification required under
subsection (a), or
``(ii) if such notification is not completed, the
notification to the extent completed and a statement of
the reasons for such noncompliance,
from both persons, or, in the case of a tender offer, the
acquiring person; and
``(B) end on the thirtieth day after the date of such
receipt (or in the case of a cash tender offer, the fifteenth
day), or on such later date as may be set under subsection
(e)(2) or (g)(2).
``(2) The Federal Trade Commission and the Assistant Attorney
General may, in individual cases, terminate the waiting period
specified in paragraph (1) and allow any person to proceed with any
acquisition subject to this section, and promptly shall cause to be
published in the Federal Register a notice that neither intends to take
any action within such period with respect to such acquisition.
``(3) As used in this section--
``(A) The term `voting securities' means any securities
which at present or upon conversion entitle the owner or holder
thereof to vote for the election of directors of the issuer or,
with respect to unincorporated issuers, persons exercising
similar functions.
``(B) The amount or percentage of voting securities or
assets of a person which are acquired or held by another person
shall be determined by aggregating the amount or percentage of
such voting securities or assets held or acquired by such other
person and each affiliate thereof.
``(c) The following classes of transactions are exempt from the
requirements of this section--
``(1) acquisitions of goods or realty transferred in the
ordinary course of business;
``(2) acquisitions of bonds, mortgages, deeds of trust, or
other obligations which are not voting securities;
``(3) acquisitions of voting securities of an issuer at
least 50 per centum of the voting securities of which are owned
by the acquiring person prior to such acquisition;
``(4) transfers to or from a Federal agency or a State or
political subdivision thereof;
``(5) transactions specifically exempted from the antitrust
laws by Federal statute;
``(6) transactions specifically exempted from the antitrust
laws by Federal statute if approved by a Federal agency, if
copies of all information and documentary material filed with
such agency are contemporaneously filed with the Federal Trade
Commission and the Assistant Attorney General;
``(7) transactions which require agency approval under
section 10(e) of the Home Owners' Loan Act (12 U.S.C. 1467a),
section 18(c) of the Federal Deposit Insurance Act (12 U.S.C.
1828(c)), or section 3 of the Bank Holding Company Act of 1956
(12 U.S.C. 1842);
``(8) transactions which require agency approval under
section 4 of the Bank Holding Company Act of 1956 (12 U.S.C.
1843) or section 5 of the Home Owners' Loan Act (12 U.S.C.
1464), if copies of all information and documentary material
filed with any such agency are contemporaneously filed with the
Federal Trade Commission and the Assistant Attorney General at
least 30 days prior to consummation of the proposed
transaction;
``(9) acquisitions, solely for the purpose of investment,
of voting securities, if, as a result of such acquisition, the
securities acquired or held do not exceed 10 per centum of the
outstanding voting securities of the issuer;
``(10) acquisitions of voting securities, if, as a result
of such acquisition, the voting securities acquired do not
increase, directly or indirectly, the acquiring person's per
centum share of outstanding voting securities of the issuer;
``(11) acquisitions, solely for the purpose of investment,
by any bank, banking association, trust company, investment
company, or insurance company, of (A) voting securities
pursuant to a plan of reorganization or dissolution; or (B)
assets in the ordinary course of its business; and
``(12) such other acquisitions, transfers, or transactions,
as may be exempted under subsection (d)(2)(B).
``(d) The Federal Trade Commission, with the concurrence of the
Assistant Attorney General and by rule in accordance with section 553
of title 5, United States Code, consistent with the purposes of this
section--
``(1) shall require that the notification required under
subsection (a) be in such form and contain such documentary
material and information relevant to a proposed acquisition as
is necessary and appropriate to enable the Federal Trade
Commission and the Assistant Attorney General to determine
whether such acquisition may, if consummated, violate the
antitrust laws; and
``(2) may--
``(A) define the terms used in this section;
``(B) exempt, from the requirements of this
section, classes of persons, acquisitions, transfers,
or transactions which are not likely to violate the
antitrust laws; and
``(C) prescribe such other rules as may be
necessary and appropriate to carry out the purposes of
this section.
``(e)(1) The Federal Trade Commission or the Assistant Attorney
General may, prior to the expiration of the 30-day waiting period (or
in the case of a cash tender offer, the 15-day waiting period)
specified in subsection (b)(1), require the submission of additional
information or documentary material relevant to the proposed
acquisition, from a person required to file notification with respect
to such acquisition under subsection (a) prior to the expiration of the
waiting period specified in subsection (b)(1), or from any officer,
director, partner, agent, or employee of such person.
``(2) The Federal Trade Commission or the Assistant Attorney
General, in its or his discretion, may extend the 30-day waiting period
(or in the case of a cash tender offer, the 15-day waiting period)
specified in subsection (b)(1) for an additional period of not more
than 20 days (or in the case of a cash tender offer, 10 days) after the
date on which the Federal Trade Commission or the Assistant Attorney
General, as the case may be, receives from any person to whom a request
is made under paragraph (1), or in the case of tender offers, the
acquiring person, (A) all the information and documentary material
required to be submitted pursuant to such a request, or (B) if such
request is not fully complied with, the information and documentary
material submitted and a statement of the reasons for such
noncompliance. Such additional period may be further extended only by
the United States district court, upon an application by the Federal
Trade Commission or the Assistant Attorney General pursuant to
subsection (g)(2).
``(f) If a proceeding is instituted or an action is filed by the
Federal Trade Commission, alleging that a proposed acquisition violates
section 7 of this Act or section 5 of the Federal Trade Commission Act,
or an action is filed by the United States, alleging that a proposed
acquisition violates such section 7 or section 1 or 2 of the Sherman
Act, and the Federal Trade Commission or the Assistant Attorney General
(1) files a motion for a preliminary injunction against consummation of
such acquisition pendente lite, and (2) certifies the United States
district court for the judicial district within which the respondent
resides or carries on business, or in which the action is brought, that
it or he believes that the public interest requires relief pendente
lite pursuant to this subsection, then upon the filing of such motion
and certification, the chief judge of such district court shall
immediately notify the chief judge of the United States court of
appeals for the circuit in which such district court is located, who
shall designate a United States district judge to whom such action
shall be assigned for all purposes.
``(g)(1) Any person, or any officer, director, or partner thereof,
who fails to comply with any provision of this section shall be liable
to the United States for a civil penalty of not more than $10,000 for
each day during which such person is in violation of this section. Such
penalty may be recovered in a civil action brought by the United
States.
``(2) If any person, or any officer, director, partner, agent, or
employee thereof, fails substantially to comply with the notification
requirement under subsection (a) or any request for the submission of
additional information or documentary material under subsection (e)(1)
within the waiting period specified in subsection (b)(1) and as may be
extended under subsection (e)(2), the United States district court--
``(A) may order compliance;
``(B) shall extend the waiting period specified in
subsection (b)(1) and as may have been extended under
subsection (e)(2) until there has been substantial compliance,
except that, in the case of a tender offer, the court may not
extend such waiting period on the basis of a failure, by the
person whose stock is sought to be acquired, to comply
substantially with such notification requirement or any such
request; and
``(C) may grant such other equitable relief as the court in
its discretion determines necessary or appropriate,
upon application of the Federal Trade Commission or the Assistant
Attorney General.
``(h) Any information or documentary material filed with the
Assistant Attorney General or the Federal Trade Commission pursuant to
this section shall be exempt from disclosure under section 552 of title
5, United States Code, and no such information or documentary material
may be made public, except as may be relevant to any administrative or
judicial action or proceeding. Nothing in this section is intended to
prevent disclosure to either body of Congress or to any duly authorized
committee or subcommittee of Congress.
``(i)(1) Any action taken by the Federal Trade Commission or the
Assistant Attorney General or any failure of the Federal Trade
Commission or the Assistant Attorney General to take any action under
this section shall not bar any proceeding or any action with respect to
such acquisition at any time under any other section of this Act or any
other provision of law.
``(2) Nothing contained in this section shall limit the authority
of the Assistant Attorney General or the Federal Trade Commission to
secure at any time from any person documentary material, oral
testimony, or other information under the Antitrust Civil Process Act,
the Federal Trade Commission Act, or any other provision of law.
``(j) Beginning not later than January 1, 1978, the Federal Trade
Commission, with the concurrence of the Assistant Attorney General,
shall annually report to Congress on the operation of this section.
Such report shall include an assessment of the effects of this section,
of the effects, purpose, and need for any rules promulgated pursuant
thereto, and any recommendations for revisions of this section.
``(k)(1) The consideration by the Federal Communications Commission
of any application for a transfer of license, or the acquisition and
operation of lines, that is associated with an acquisition subject to
this section shall be governed by the procedures set forth in this
subsection.
``(2)(A) Upon receipt of an application referred to in paragraph
(1), the Federal Communications Commission may submit to the party or
parties covered by the application a request for any documents and
information necessary for consideration of the transfer of license, or
acquisition and operation of lines, addressed in the application.
``(B) The Federal Communications Commission shall submit a request
under subparagraph (A), if at all, not later than 30 days after receipt
of the application in question.
``(3)(A) A party subject to a request from the Federal
Communications Commission under paragraph (2) shall submit to the
Federal Communications Commission the documents and information
identified in the request.
``(B) At the completion of the submission to the Federal
Communications Commission of documents and information pursuant to a
request under subparagraph (A), the party submitting such documents and
information shall certify to the Federal Communications Commission
whether or not such party has complied substantially with the request.
``(4) Whenever consideration of an application referred to in
paragraph (1) includes one or more requests for documents and
information under paragraph (2), the Federal Communications Commission
shall complete the consideration of the application not later than 180
days after the date on which all parties covered by such requests have
certified to the Federal Communications Commission under paragraph
(3)(B) that such parties have complied substantially with such
requests.
``(5)(A) In any case in which the Federal Communications Commission
does not request under paragraph (2) any documents and information for
the consideration of an application referred to in paragraph (1), the
Federal Communications Commission shall approve or deny the transfer of
license, or the acquisition and operation of lines, covered by the
application not later than 30 days after the date of the submittal of
the application to the Federal Communications Commission.
``(B) In any case in which the Federal Communications Commission
requests under paragraph (2) documents and information for the
consideration of an application referred to in paragraph (1), the
Federal Communications Commission shall approve or deny the transfer of
license, or the acquisition and operation of lines, covered by the
application on the date of the completion of consideration of the
application under paragraph (4).
``(C) If the Federal Communications Commission does not approve or
deny an application for a transfer of license, or for the acquisition
and operation of lines, by the date set forth in subparagraph (A) or
(B), whichever applies, the application shall be deemed approved by the
Federal Communications Commission as of such date. Approval under this
subparagraph shall be without conditions.
``(6)(A) Any party seeking to challenge the reasonableness of a
request of the Federal Communications Commission under paragraph (2)
shall bring an action in the United States District Court of the
District of Columbia seeking a declaratory judgment or injunctive
relief with respect to that challenge.
``(B) In seeking to challenge the compliance under paragraph (3) of
a party with a request under paragraph (2), the Federal Communications
Commission shall bring an action in the United States District Court of
the District of Columbia seeking a declaratory judgment or injunctive
relief with respect to that challenge.
``(C) The period of an action under this paragraph may not be taken
into account in determining the passage of time under a deadline under
this subsection.
``(7) No provision of this subsection may be construed to limit or
modify--
``(A) the standards utilized by the Federal Communications
Commission under the Communications Act of 1934 (47 U.S.C. 151
et seq.) in considering or approving transfers of licenses, or
the acquisition and operation of lines, covered by an
application referred to in paragraph (1); or
``(2) the authority of the Federal Communications
Commission under that Act to impose conditions upon the
transfer of licenses, or the acquisition and operation of
lines, pursuant to such consideration or approval.
``(8) Subsection (g)(1) shall not apply with respect to the
activities of a party under this subsection.''.
(b) Effective Date.--(1) Except as provided in paragraph (2), the
amendment made by subsection (a) shall take effect on the date of the
enactment of this Act.
(2) Subsection (k) of section 7A of the Clayton Act, as amended by
subsection (a) of this section, shall take effect 30 days after the
date of the enactment of this Act, and shall apply with respect to
applications referred to in such subsection (k) that are submitted to
the Federal Communications Commission on or after that date.
<all>
Introduced in Senate
Read twice and referred to the Committee on Judiciary.
Referred to Subcommittee on Antitrust and Business.
Subcommittee on Antitrust, Business Rights, and Competition. Hearings held. With printed Hearing: S.Hrg. 106-405.
Subcommittee on Antitrust and Business. Approved for full committee consideration with an amendment in the nature of a substitute favorably.
Committee on Judiciary. Ordered to be reported with an amendment in the nature of a substitute favorably.
Committee on Judiciary. Reported to Senate by Senator Hatch with an amendment in the nature of a substitute and an amendment to the title. Without written report.
Committee on Judiciary. Reported to Senate by Senator Hatch with an amendment in the nature of a substitute and an amendment to the title. Without written report.
Placed on Senate Legislative Calendar under General Orders. Calendar No. 192.
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